Siman 174

If the yevama was forbidden to the yavam by the prohibition of a negative commandment or a positive commandment, or if she is a secondary relation to an ervah regarding the yavam, she performs chalitzah and does not undergo yibum. And for what reason does she perform chalitzah, and why do we not exempt her even from chalitzah as we do with an ervah? Because he has the capacity for marriage with them and kiddushin takes effect with them, and therefore they are bound to the yavam. Furthermore, from the Torah they are also subject to yibum, because yibum is a positive commandment and we hold that a positive commandment overrides a negative commandment. This is certainly true of secondary relations, which from the Torah are completely permitted, except that the sages decreed that they should not undergo yibum as a decree lest he come upon her a second time, for his cohabitation would then be forbidden and there is no mitzvah there, as the mitzvah is only the first cohabitation (Rambam chapter 6). And one should not say: how is it possible to apply the law of a positive commandment overriding a negative commandment here, for in any place where we can fulfill both, we hold that a positive commandment does not override a negative commandment? However, they asked this in the Gemara and answered that chalitzah in place of yibum is not a mitzvah at all (21a). And one can say the reason is because yibum is a drawing near to establish a name for his brother, while chalitzah is a distancing; and granted that the Torah gave him permission, nevertheless the essence of the mitzvah is the drawing near, only the Torah did not wish to coerce him into this.

Therefore, if he transgressed and cohabited with his yevamah who is forbidden to him by a negative commandment—whether among the negative commandments of the priesthood or among those of the congregation of Israel, such as a mamzer, a Netin, or similar cases, and certainly a sheniyah—he acquires her with a complete acquisition and releases her with a get, and she and all her co-wives are permitted to a stranger, for they have been exempt. However, a yevamah who is a widow from marriage and a Kohen Gadol cohabited with her, who is commanded regarding her by a negative commandment and a positive commandment, her co-wife is not exempt, for a positive commandment does not override a negative commandment and a positive commandment. Since he did not acquire her with a complete acquisition according to the Torah, her co-wife is not exempt until she performs chalitzah (ibid.). But she herself is exempt since, in any event, he cohabited with her. This is also implied by the wording of the Shas (20a: One says she exempts her co-wife, etc.; and see there in Rashi, and it requires some further study; and see what I wrote in section 4, and delve into it). We have already explained in siman 170 that the Rambam holds that she herself is exempt through a deficient chalitzah, see there, and certainly through a deficient cohabitation (and see Beit Shmuel at the end of subsection 3).

The rivals of those liable for a negative commandment, a positive commandment, or a secondary prohibition, either perform chalitzah or perform yibbum, for the Torah only forbade the rival of an ervah, as it is written, "to be a rival" regarding the sister of his wife who is liable for karet, and from this we derive the rivals, as I wrote in siman 173, and not regarding these. And thus it is stated in the Yerushalmi (Nimukei Yosef). And I did not find this in the Yerushalmi, and in the Tosefta (chapter 1) we learned the opposite, for we find the version there: In what case does this apply? Regarding a woman with whom he cannot effect kiddushin, but regarding a woman with whom he can effect kiddushin, their rivals perform chalitzah and do not perform yibbum. Thus far its words. However, in our Shas (20a) it is explicitly permitted (and thus it is stated there: Some say, any whose prohibition is a prohibition of ervah, her rival is forbidden; but if her prohibition is not a prohibition of ervah, her rival is not forbidden, see there; and one must further investigate the Nimukei Yosef who did not cite from this Gemara).

And there is a question regarding this, for according to what we have written, when there is a positive commandment and a negative commandment in the yibbum, the positive commandment of yibbum does not override it even by Torah law, and she requires chalitzah by Torah law. Yet, everyone who is eligible for yibbum is eligible for chalitzah, and vice versa; and since she is not eligible for yibbum, she should not require chalitzah either. The answer to this was written by the Bahag (Laws of Arayot), that this which Rava Giddel said in the name of Rav is established regarding a widow from marriage, for even though by Torah law she is not eligible for yibbum, the Merciful One included her for chalitzah. Thus far his words. The explanation of his words is that in the Gemara (20a) they discussed why those prohibited by negative commandments perform chalitzah and do not perform yibbum, and Rav Giddel expounded: The verse states, "And his yevamah shall go up to the gate," for there is no need for the verse to say "his yevamah"; what does the verse teach by saying "his yevamah"? You have one yevamah who goes up for chalitzah and does not go up for yibbum. And the Shas rejects this and concludes that by Torah law it does override, and only by rabbinic decree did they forbid the first cohabitation due to the second cohabitation, as we have written. And this is what the Bahag said, that this exposition comes to include those liable for a negative commandment and a positive commandment together (see there in the Chiddushei Rashba). And according to this, if he had cohabitation with her, she is not exempt, unlike the Rambam in section 2.

The Tur and the Shulchan Aruch wrote in section 1 that the chalitzah of one who is subject to a negative commandment, or a positive commandment, or a secondary prohibition, does not exempt her co-wife, but the chalitzah of her co-wife exempts her. Their words are based on the words of the Rambam in chapter 7 regarding the law that an invalid chalitzah does not exempt the co-wife. He wrote in law 10: It appears to me that such is the law regarding two yevamot coming from one house, where one of them is forbidden to her yavam due to a secondary prohibition, or from those subject to negative commandments, or from those subject to positive commandments, that if he performed chalitzah for the forbidden one, her co-wife is not permitted; if he performed chalitzah for the co-wife, the forbidden one is permitted. Thus far his words. And they wondered about him, for in the Gemara (20b) it is explicitly stated to the contrary, as the Shas cited a Baraita: One of a commandment prohibition or a holiness prohibition—if he had intercourse with her or performed chalitzah for her, her co-wife is exempted; see there. And so it is explicitly stated in a similar case (ibid.). There is one who wishes to say that it deals with a case where her co-wife is also forbidden like her, for in such a case even an invalid chalitzah exempts her co-wife, as he wrote in siman 170 regarding something similar (Beit Shmuel siman 170, subsection 13). However, besides the fact that it does not imply this, and the Rambam should have clarified this, furthermore from the Tosefta (chapter 6) the opposite is clarified, as it is taught there: If one of them was forbidden etc. an ervah prohibition, and he performed chalitzah for her, he has done nothing; if she was a commandment prohibition or a holiness prohibition, and he performed chalitzah for her or had intercourse with her, her co-wife is exempted. Thus far his words. Behold, it is explicit that only she is forbidden and not her co-wife. And there is one who answered that the Baraita in the Gemara holds there is no zika (the Gra there, subsection 45), and whoever holds thus, even a poor chalitzah exempts a co-wife (Tosafot 26b). But we rule that there is zika. And this too is difficult, for if so, the Shas should have raised a difficulty from it against the one who holds there is zika; however, even without this Baraita there is a dispute of Tannaim regarding this (Rabban Gamliel and the Rabbis 51a). Furthermore, it is difficult because in the Yerushalmi (chapter 2, halacha 3) it is also stated so, that for a commandment prohibition and a holiness prohibition, if he performed chalitzah for her, her co-wife is exempted, see there; and the Yerushalmi holds (in chapter 3) that there is zika, see there.

And there is one who answered that the baraita in the Gemara deals with the law of the Torah (Bach), and so it appears to be the primary view. And even though the sheniyot are fundamentally rabbinic, this is the explanation: behold, that which a deficient chalitzah does not exempt her co-wife is a rabbinic stringency. And the proof is that the essence of this law is regarding one who received a get and one who received maamar, as I wrote in siman 170, and this is only rabbinic. And this baraita is from the Tosefta that we cited, which in its entirety only came to separate this one from an ervah, as we cited that regarding an ervah the chalitzah is nothing, while regarding a mitzvah and kedushah the chalitzah is good according to the fundamental law even to exempt her co-wife. And it does not deal at all with this stringency that a deficient chalitzah does not exempt her co-wife. And this is what the Rambam innovated, for it appears to him from the perspective of logic that since they were stringent regarding a deficient chalitzah that the co-wife is not exempted by it, the chalitzah of a prohibition of mitzvah and kedushah is no better than all other deficient chalitzot (and the difficulties of the Beit Shmuel, subsection 13, are answered).

However, regarding the law, even though in this siman they stated it without qualification according to the opinion of the Rambam, nevertheless, in siman 170, section 18, it implies that they took as the primary view the opinion of those who disagree with him and hold that it is not called a deficient chalitzah except when the zikah was subsequently damaged by a get or a maamar, and not when it was so from the beginning, as we explained there in section 8. Also, regarding the opinion of the Rambam, we explained much there with the help of Heaven. This is the wording of the Shulchan Aruch there: One before whom two yevamot from one house fell, one a sheniyah to the yavam and one permitted; when he performs yibbum, he performs yibbum with the other, and when he performs chalitzah, he performs chalitzah with the sheniyah. And there is one who says that if he performed chalitzah with the forbidden one, her rival-wife is not permitted, etc. Thus far his words. Behold, they wrote the opinion of the Rambam in the name of "there is one who says," and therefore they were brief here and relied on what is there, and they mentioned there only a sheniyah and not those liable for a negative commandment or a positive commandment, for they have one law.

But when he performs yibbum with the forbidden woman, there is no dispute here, for according to everyone her co-wife is exempted. And even though in the Yerushalmi there is a dispute regarding this, nevertheless, its conclusion is also that the co-wife is exempted; see there. And one should not ask according to the opinion of the Rambam why we should be more stringent regarding chalitzah than regarding yibbum (and the Gra there raised this difficulty; see there), for it can be said simply that regarding chalitzah it is possible to be stringent, that he should also give chalitzah to the permitted woman. But regarding yibbum, it is impossible to say that he should also perform yibbum with the permitted woman; and were we to say that he should perform chalitzah with the permitted woman, it would lead to ruin, as they would say that the yibbum of the forbidden woman is nothing and they would come to perform yibbum with the permitted woman, and it would result in two yevamot from one house being taken in yibbum. And even though regarding cohabitation after a get or after maamar to another woman they were more stringent than regarding chalitzah, as is explained in the Gemara (50b), there it is for the reason of a decree, as is stated there, and we have already explained this in siman 170. This is not the case here, where this decree is not applicable, and they did not want to be stringent and require chalitzah after the cohabitation. Furthermore, there the ruin was caused by a prior get or maamar, which everyone knows are rabbinic, and they will not come to the ruin of performing yibbum with two women from one house; this is not the case with a prohibition of a negative commandment or a positive commandment. And also regarding shniyot, they did not want to change from the law of those liable for negative or positive commandments, and it is like Torah law in the eyes of the world—shniyot to arayot—as we derive from the verse "And you shall guard My charge," and they made it like that of the Torah. And since by Torah law she is obligated in yibbum, therefore if he performed yibbum with her, they did not require anything else for the co-wife. And even according to the one who holds that the mitzvah of chalitzah comes first, that is because perhaps he will not intend it for the sake of the mitzvah; but post facto, once he has already performed yibbum, it is certainly the primary mitzvah. Therefore, when he performs yibbum with her, her co-wife is exempted, and he is obligated to release her with a get. And I am very astonished by the wording of the Shulchan Aruch at the end of section 1, where they wrote: "and if he wants to release her, he releases her with a get." Thus far his words. But behold, he is obligated to release her, and so wrote the Tur; therefore, it appears to me that it is a scribal error (and according to what I have written, the difficulties of the Gra in siman 170 there and the difficulties of the Beit Shmuel there are settled; and delve into it).

A yevamah who fell for yibbum, and the husband held her in a state of prohibition because she was to him among those prohibited by a negative commandment, or a positive commandment, or a secondary rabbinic prohibition, yet to the yavam she is permitted—she may undergo yibbum. We do not say, "Behold, the yibbum comes by virtue of the deceased brother, and he himself held her in a state of prohibition, so how can his brother perform yibbum with her?" For there is no connection between one and the other; since the kiddushin were effective for her, she is subject to yibbum by the Torah and he must perform yibbum with her. The prohibition that was upon his brother is not upon him, except if this yevamah was from the prohibition of one who returns his divorcee after she had married another, for then the Sages said (11b) that the yavam is not permitted to perform yibbum with her, but rather she performs chalitzah, and her rival wife either performs chalitzah or undergoes yibbum. And so all the poskim ruled.

The reason why she is different from all those liable for a negative commandment was explained by our sages, of blessed memory, with this wording: It is a kal vachomer; if she was forbidden to one to whom she was permitted, all the more so to one to whom she was forbidden (ibid.). The explanation of these matters is that regarding all those liable for a negative commandment, she was never permitted to have relations with the yavam; therefore, since the law of yibum applies to him, he is permitted to perform yibum. This is not the case with one who remarries his divorcee, for at the time he married her and also when he divorced her, she was permitted to him, while to the yavam she was forbidden under the prohibition of karet. After she married another, she became forbidden to the husband as well. If so, how is it possible that through her return to the husband in prohibition—to whom she was previously permitted—she should become permitted to the yavam, to whom she was previously forbidden? For the essence of the yibum is through her return, and this is done in prohibition. Therefore, her law is different from all those liable for a negative commandment.

The Maggid Mishneh wrote (Chapter 6, Halacha 13) that if she has a co-wife, the co-wife is exempted through the chalitzah of the one who remarried his divorcee, but not through her intercourse. They questioned him, for this is only in the case of a widow to a Kohen Gadol where there is a positive commandment and a negative commandment, but one who remarries his divorcee is a negative commandment like all those liable for negative commandments, who from the Torah are subject to yibbum (Beit Yosef). However, his reasoning is simple, as the Rashba, of blessed memory, wrote in his novellae (20b), that one who remarries his divorcee from the Torah does not arise for yibbum but only for chalitzah from the verse "and his sister-in-law shall go up to the gate," and as was written in the name of the Bahag in section 4 regarding a widow to a Kohen Gadol. And the reason is as was written, that she is different from all those liable for negative commandments because of the logic in the previous section (and the Taz lengthily discussed this point needlessly, and this is the intent of the Beit Shmuel in subsection 4, and it is almost explicitly stated so in the Maggid Mishneh himself, see there). (And we have already written that it appears that the Rambam does not hold like the Bahag, and regarding one who remarries his divorcee, he mentioned nothing).

The Tur and the Shulchan Aruch wrote: The sister of a chalutza is forbidden by rabbinic law; therefore, if she fell before a yavam, she performs chalitza and does not undergo yibbum. Similarly, her rival-wife is forbidden by rabbinic law and performs chalitza and does not undergo yibbum. Thus far their words. And this, that they were more stringent in this case than in those forbidden by a negative commandment—where the rival-wife undergoes yibbum as has been written—is because the Sages, of blessed memory, treated a chalutza like a divorcee, as they are equal in the eyes of the world, and the sister of a divorcee is a complete ervah. Therefore, they were also stringent regarding the rival-wife of the sister of a chalutza, that she should not undergo yibbum, just as with the rival-wife of the sister of a divorcee, who is forbidden from yibbum according to the law of a rival-wife of an ervah (Beit Shmuel, subsection 5). And all the more so if one of the brothers committed a transgression and married the chalutza and died, her rival-wife is also forbidden from yibbum (ibid.).

The sages taught in the Mishnah (31b): Three brothers married to three unrelated women, and one of them died, and the second performed maamar with her and died—these perform chalitzah and do not perform yibbum, as it is said: "And one of them dies... her yavam shall come upon her"—one who is subject to the zikat of one yavam, and not one who is subject to the zikat of two yavamim. Thus far its words. And this is only a mere asmachta, for the essence of maamar is only derabbanan, as I wrote in siman 170; and furthermore, if it were from the Torah, she should not require chalitzah either (Gemara). Rather, from the Torah, he is permitted to perform yibbum with both of them, for each one is from a separate house. However, the rabbis decreed that since the second performed maamar with her, she appears as his wife, and it is like two yevamot from one house, and people will say that one is permitted to perform yibbum with two women from one house.

And by the letter of the law, it should have been necessary to be stringent only regarding the recipient of the maamar, upon whom the two zikot are apparent, and not regarding her rival-wife—that is, the wife of the second brother. However, they decreed also regarding her because they feared people would say regarding two women from one house that one is permitted to perform chalitzah for one and afterwards perform yibbum with the second, just as here, of the two wives of the second brother, one performs chalitzah and one undergoes yibbum; and after chalitzah it is forbidden by the Torah to perform yibbum. Therefore, they decreed regarding both of them that they shall not undergo yibbum but shall perform chalitzah. But if he did not perform maamar with her, even though she is bound to the second brother and also appears as if she has the zikah of two yevamin upon her, nevertheless, since this is only rabbinic, they were not stringent where he did not perform maamar.

And even if he performed maamar with her, but gave her a get and specified that the get is for his maamar and died, the third brother is permitted to perform yibbum with both of them, for each one comes from a separate house, and the maamar that the second brother performed has been removed by means of the get and it is as if he did not perform maamar with her. And specifically where he specified that the get is for his maamar, but if he gave her a get without specification, she is forbidden to perform yibbum, for the get is to her detriment, but the maamar remains in its force, and were he alive, she would require from him another get for his maamar.

It has already been explained in siman 170 that the cohabitation of a minor aged nine years and one day is like a maamar in an adult. Therefore, if Reuven died and left two brothers, one an adult and one a minor aged nine, and the minor cohabited with his yevamah and died, this adult performs chalitzah and does not perform yibbum, because she is subject to the zika of two yevamin, for his cohabitation does not effect a complete acquisition. However, if an adult cohabited with his yevamah and died, the third brother performs yibbum, for the zika of the first was removed through the cohabitation of the second, and she is only bound by the second.

It has already been explained in siman 44 that a woman who is half-maidservant and half-freewoman who was betrothed to Reuven, and afterwards was manumitted, and afterwards was betrothed to Shimon, requires a get from both of them. This is because there is a doubt whether, when she was manumitted, the kiddushin of the first were completed and the kiddushin of the second do not take effect at all, or if the kiddushin of the first were uprooted because she changed into a different entity and only the kiddushin of the second took effect. Therefore, our sages of blessed memory said (Gittin 43a): a woman who is half-maidservant and half-freewoman who was betrothed to Reuven and was manumitted, and Shimon his brother betrothed her, and both of them died and she fell before Levi their brother, she may undergo yibbum with him. I do not apply to her the status of "the wife of two deceased men" such that she would be like one who is subject to the zika of two yevamin, for in any case she is only the wife of one. For if the kiddushin of Reuven were completed upon her manumission, she is his wife and the kiddushin of Shimon do not take effect at all; and if the kiddushin of Reuven were voided by the manumission, she is only the wife of Shimon alone. Therefore, she undergoes yibbum with Levi in any case. And if Shimon is not the brother of Reuven and is a stranger to him, when they die, the brother of Reuven and the brother of Shimon must perform chalitzah with her because of the doubt. Or, one may perform chalitzah first and afterwards the second may marry her in any case; for if the kiddushin of his brother took effect, she is his yevamah, and if the kiddushin of Reuven took effect, she has already received chalitzah from the brother of Reuven and is unattached and permitted to him. But to perform yibbum before the chalitzah is forbidden, for perhaps she is bound to the other, and it would result in a yevamah marrying an outsider without chalitzah.